propensities of the animal or dangerous defects in the machinery. If, for instance, one lends to another a loaded gun, he should warn him that it is loaded. Indeed, one has no right to expose negligently and knowingly even a gratuitous bailee to danger. In the case of bailments for the sole benefit of the bailee, however, the bailor is not presumed to warrant any fitness for the purpose for which the article is loaned, nor is he held liable for dangerous defects in the article loaned which were not known to him, even though by the exercise of due care he could have discovered them.

§ 12. Property Rights of the Bailee. Although the title in the subject of the bailment remains in the bailor, the right of possession is in the bailee; and as long as the bailment lasts, that right may be asserted by the latter against all the world, including the bailor himself. The bailee is responsible to his bailor in case of a theft or loss to which his negligence has contributed; the possession is often of value to him, and it is fitting, therefore, that he should be allowed to sue in his own name for the recovery of the article taken and for damages for such taking and for such detention. It is also fitting that he should be allowed to sue in his own name for injuries both to the property and to his right of possession. Usually the value of the article at the time and place at which it was taken, with interest thereon from the time of such taking, will be deemed the measure of his damages in case of theft; the interest, as a rule, being considered a satisfactory compensation for, and measure of, the value of the use of which he has been deprived; but there are cases in which these damages are clearly inadequate and in which the general rule would not in any sense compensate for the injury done. In such cases he may recover not merely the value of the article but his special and peculiar damages which have been occasioned by the taking. The interest on the value of a horse would, for instance, hardly be a measure for the value of the use in a case where an animal had been taken in the midst of harvest or threshing and a

whole threshing crew had been rendered idle by the tort, and a journey to a distant town had been made necessary, and the crops had been exposed and ruined. So, too, the bailee can always recover reasonable expenses which he has incurred in attempting to recover the article. In certain States, also, where the goods have a fluctuating market value, the bailee, provided he brings suit within a reasonable time after the unlawful taking, may recover the highest market value of the goods between the date of such taking and the time of the trial.4

§ 13. Concurrent Right of Action of Bailor and Bailee. The gist of trespass to personal property is the injury done to the plaintiff's possession. The substance of the declaration is that the plaintiff had, at the time of the alleged injury, either actual or constructive possession of the property injured. His possession is constructive when the property is in the actual custody and occupation of no one, but rightfully belongs to himself, when it is in the care and custody of his servant, agent, or overseer, or when it is in the hands of a bailee for custody, carriage or other care or service, as a depositary, mandatary, carrier, borrower, or the like, and such bailee or actual possessor has no vested interest in the property, right to the beneficial use or enjoyment of it, or to retain it in his possession, but the owner may take it into his own hands at pleasure. Where, however, the general owner has parted with the actual possession in favor of one who enjoys the exclusive right of present possession and enjoyment, retaining to himself only a reversionary interest, the possession is that of the lessee or bailee, who alone can maintain an action of trespass for a forcible injury to the property. In cases where the bailee has no absolute right to retain possession of the property for a definite time, an action of trespass against a wrongdoer may be brought either in the name of the bailor or the bailee. The action attaches to him who first chooses to bring it, and a recovery by either the bailor or the bailee will oust the other of his right, although an accounting 4 Joyce on Damages, § 1174.

must, of course, be made between the parties. If the bailor sues he must account to the bailee for special damages occasioned to him, while if the bailee brings the action he must account to the bailor for the value of the article or for the use of which the latter has been deprived; and a recovery by the one will be a bar to an action by the other.

§ 14. Estoppel of the Bailor. If the bailor clothes the bailee with indicia of ownership other than that afforded by the mere possession of the goods, as would be the case where the bailor allows the bailee to enter them upon his own books or upon a public record as belonging to him, or allows him to take out a license on a cart or automobile in his own name, or perhaps entrusts his goods to one whose regular business it is to sell similar articles, and a third party innocently relies on such indicia and purchases the goods from the bailee, the bailor has usually no recourse except as against the bailee himself. If no such indicia are furnished, however, the bailor may maintain trespass, trover, replevin, or detinue, against the purchaser.

§ 15. Obligations of the Bailee. In every bailment the bailee actually or impliedly agrees to admit the title of his bailor, to obey his instructions, to use the bailed article in accordance with the terms of the bailment and to redeliver the same at the termination of the relationship. A material deviation from the instructions given will, of course, render the bailee liable to his bailor in damages; and a willful appropriation or a disposition of the goods, in a manner other than that authorized, will amount to a conversion and will impose an absolute liability in case of loss, regardless of the fact as to whether the defendant was negligent or not. This rule is applied even in the case of gratuitous bailments for the sole benefit of the bailor. It is applied by all of the authorities even in cases where the act of God or of the public enemy occasions the loss. There is some dispute, however, as to whether it applies in the case of common carriers, of the ordinary carrier for hire and of mandates for carriage; where the fault is a negligent delay in the matter of carriage

merely, and some authorities, (noticeably the Supreme Court of the United States),5 hold that the act of God can be pleaded even where an unreasonable and unlawful delay in the carriage of the goods makes that act operative, as in the case where goods are destroyed in a flood or by a violent thunderstorm, which would have been entirely avoided if the goods had been started on their journey within a reasonable time or within the time agreed upon. In such cases the Supreme Court of the United States and the courts that follow its ruling hold that the act of God is the proximate, and the delay merely the remote cause, of the loss." In cases of delay, however, which are occasioned by a deviation from the route agreed upon, and, in fact, in all cases of deviation, the courts uniformly repudiate the defense. A wrongful use also will, at the option of the bailor, terminate a bailment. Illustrations of such improper use are where the bailee keeps or uses the chattel after the term has expired, or where he hires or gains possession of a horse for the purpose, expressed in the contract, of driving it to a certain place, or by a certain route, and drives it to a different place or by a different route, or beyond the place agreed upon; or where he hires a horse for driving purposes merely and uses it as a saddle horse. It would seem, however, that in such cases the breach of contract must have been willful and that the bailee will not be held liable where he has taken the wrong road by mistake or has been forced to do so by circumstances which are beyond his control. So, too, there are cases which hold that the breach or wrongful use must itself have actually contributed to the injury; and that the riding, for instance, of a horse a few miles beyond the point agreed upon will not make the rider liable in dam

5 Railroad Co. v. Reeves, 10 Wall. 176; Morrison v. Davis & Co., 20 Pa. St. 171; Denny v. New York Central R. Co., 13 Gray 481; Hoadley v. Northern Trans Co., 115 Mass. 304; McClary v. R. Co., 3 Neb. 44.

6 For cases holding bailee liable, see Denison v. R. Co., 3 Lans. 265; Read v. Spaulding, 30 N. Y. 630; Michaels v. R. Co., 30 N. Y. 564; 86 Am. Dec. 415; Hewett v. R. Co., 63 Ia. 611; McGraw v. R. Co., 18 West Va. 361; 41 Am. Rep. 696.

ages to the owner, where, after returning from the extra trip and on his way home between the points agreed upon, the horse stumbles and is injured, without the further proof that the extra miles traveled so wearied the animal as to cause him to fall when within the permitted area.

In all cases, also, since there is an obligation on the part of the bailee to use at least some measure of care in the custody and preservation of the article bailed, a use is not only always authorized, but is generally required, which is reasonably necessary for such preservation, and a failure of such use will in most instances amount to an omission of duty which is negligence. Horses, for instance, must be given some exercise and milch cows must be milked. In the latter case the duty to milk or to have milked is so apparent as to devolve even upon the gratuitous bailee. In the former, though the duty to exercise properly would perhaps devolve upon the bailee for hire or mutual-benefit bailee, it would perhaps, hardly devolve, in the absence. of a special contract, upon him whose services were gratuitous, as the injury from its failure is not so apparent as to make that failure the absence of even slight care, for which alone such a bailee is responsible. Even the right and duty reasonably to exercise a horse must be conscientiously used and cannot be made the pretext for use which shall redound to the benefit of the bailee. It must, in short, be used only and solely for the benefit of the bailor and for the preservation of the animal itself. Even estrays cannot be worked in order to make them earn their feed, nor will it be a defense to an unnecessary use of a bailed horse that the use was absolutely necessary to the bailee, as where the bailed horse is driven in order to bring a doctor to the bedside of a dying member of the bailee's family.

§ 16. Insurable Interest of Bailee. Bailees of all classes have an insurable interest in the goods which are entrusted to them and may insure the same in their own names and for their full value, and with or without the consent of 7 See Schouler on Bail., §§ 35-37.